The death of the intrepid Justice Antonin Scalia has shaken the political world. If his successors appointment cannot be delayed until the next presidency its assured that an unassailable hard-left majority will control the Supreme Court. This will mean conservatives warn the end of significant Second Amendment rights curtailment of many religious freedoms and a consistent rubber-stamp for the progressive" agenda.
Unfortunately the likelihood of replacing Scalia the courts pre-eminent legal mind with even a pale imitation is slim. For it to happen
- the Senate will have to exhibit fortitude and delay the confirmation of a successor.
- a Republican will have to win the presidency.
- the GOP will have to retain the Senate in Nov. and 24 GOP seats but only 10 Democrat ones are up for grabs.
- the Republican president in office will have to nominate someone not a wolf in constitutionalists clothing; the chances of this alone happening are likely less than 50 percent.
The probability of
all four of the above coming to pass isnt great. And regardless while we will fill the great Scalias position well never fill his shoes. Yet perhaps the real solution to this problem lies with something Scalia himself said just last year.
The real issue here is not whether Scalias successor will abide by the Constitution.
Its whether we will.
Consider: in a representative republic of 320 million people were all now talking about how one appointment of one unelected lawyer can radically change the face of American law rights and freedoms. Anything wrong with this picture?
This isnt to say that a civilizations fate being radically altered by one mans death and anothers ascendancy hasnt been humanitys norm. Autocracy has been humanitys norm. The king would pass on and people might lament You mean
Aylwin that kid who drools on his cloak is next in line? How shall we be ruled?" But does this sound like a concern in a land of by and for the people? The fact is that a government cannot be stable if one mans fancies and fortunes can have such a great impact on it and the wider society. Did the Founding Fathers who were most concerned about avoiding the aggregation of power by any one entity really devise such a flawed system?
This brings us to Scalias comment made in his
dissenting opinion in the 2015
Obergefell v. Hodges (marriage) ruling. To wit: with each decision...unabashedly based not on law" the Court moves one step closer to being reminded of its impotence" he warned his colleagues. To what was he referring?
Obviously the Court has neither army nor police to enforce its judgments; it is governments executive branch headed by the president on the federal level and governors in the states with the constitutional warrant to enforce law. And whatever executive branches dont enforce doesnt happen period no matter how much black-robed lawyers stamp their feet.
But is this just a matter of might makes right? Arent we to be a nation of laws? For sure.
A nation of laws not lawyers.
Laws not judicial decisions.
There is a difference. Note that Scalia complained of decisions unabashedly based not on law" clearly drawing a distinction between
decisions and
laws. Conclusion? An executive branch upholding illegal decisions is by definition not safeguarding the rule of law.
And an executive branch that
defies ignores illegal court decisions is preserving the rule of law.
Defies" is crossed out above because that term can connote resistance to authority. But the Supreme Court is not the Supreme Being. What authority" over all and sundry does it have? Some will now answer Judicial supremacy!" Lets examine that.
The legislative branch has the power to make law because the Constitution grants it. The executive branch has the power to enforce law because the Constitution grants it. And the courts exercise judicial supremacy where its decisions constrain not just its own branch but the other two as well making it not a co-equal" branch but a super-legislature/ber-executive because ____________?
The answer has nothing to do with the Constitution. Rather the Supreme Court unilaterally declared the power in the 1803
Marbury v. Madison ruling.
Thats right: Like an upstart seizing the reins in a palace coup the Supreme Court assigned the Supreme Court its oligarchic power all without the force of arms. Its a nice con if you can pull it off.
This isnt how our system is meant to work. A governmental branch derives its power from the Constitution
not from itself. And how dangerous is this usurpation? Founding Father Thomas Jefferson
warned in 1819 that judicial supremacys acceptance would do nothing less than make our constitution a complete
felo de se"
a suicide pact. He explained:
For intending to establish three departments co-ordinate and independent that they might check and balance one another it has given according to this judicial supremacy opinion to one of them alone the right to prescribe rules for the government of the others and to that one too which is unelected by and independent of the nation.... The constitution on this hypothesis is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.
Abraham Lincoln who ignored the
Dred Scott decision also agreed. As Princeton University professor Robert George
put it while conducting a December interview with Senator Ted Cruz Lincoln said that to treat unconstitutional court rulings as binding in all cases no matter what no matter how usurpative no matter how anti-constitutional would be for the American people and I quote now the Great Emancipator to resign their government into the hands of that eminent tribunal." Jefferson was even more pointed
writing in 1820 that judicial supremacy is a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy." And so it has come to pass. Were now reduced to arguing about how the next appointed oligarch will shape us wax people.
Satirist Jonathan Swift
wrote mocking the legal profession in
Gullivers Travels that it is a maxim among lawyers that whatever has been done before may legally be done again…" no matter how preposterous. Just as bad however is when we abide by judicial supremacy again and again simply because it has been done before. Part of what motivates this deference is ignorance and (bad) habit and part is cowardice and political expediency. After all hiding behind unconstitutional court rulings allows politicians to avoid making difficult decisions. When Ohio governor John Kasich
said last June after
Obergefell that faux marriage is the law of the land and well abide by it" he was essentially stating Hey dont look at me. The Court did it!" Of course he also said that now its time to move on" which he was more than happy to do. He has got his political career to consider Constitution be damned.
Any president governor or legislator worth his salt would do his duty and tell usurpative judges to go pound sand. Some will say that this would set off a constitutional crisis but newsflash: were already experiencing a constitutional crisis. This occurs not when the Constitution is protected by bringing to heel those who trample it but when that trampling goes unanswered.
By the way you know who else apparently questions judicial supremacy? Barack Obama. He has shown willingness to
ignore the courts; in fact he has been so dismissive that a federal appeals court actually
ordered the administration in 2012 to submit a letter stating whether or not it recognized the judiciarys power."
Of course Obama will defy constitutional laws; in contrast conservatives" being conservative (as in reluctant to take bold action) wont even ignore unconstitutional rulings. Its an old story. Liberal-controlled localities have been nullifying (ignoring) federal immigration and drug laws for decades. But conservatives consider nullification even in the defense of legitimate freedoms some kind of radical action despite Jeffersons calling it the rightful remedy" for all federal usurpation. And conservative" justices tend to feel constrained by precedent" even the unconstitutional variety yet dont expect any liberal Scalia replacement to bat an eye at overturning constitutional precedent that contradicts the leftist agenda. Is it any wonder conservatives never saw a cultural or political battle they couldnt lose?
One might say conservatives fight by Queensbury rules while liberals operate no-holds-barred but its not even that. Though conservatives are allowed to throw punches they prefer to stand and block and be a punching bag while the liberals throw sand in their eyes and kick off their kneecaps.
Calling the Court a threat to American democracy" Justice Scalia wrote in his
Obergefell dissent It is not of special importance to me what the law says about marriage. It is of overwhelming importance however who it is that rules me. Todays decree says that my Ruler and the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court." We wont talk the court out of its power-mad usurpative bent. Only power negates power. Its time to stop acting like impotent fools and start showing the Court how impotent it really is.
